Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

17 May 2006

Snarky Today

Actually, though, I'm referring to Miss Snark's blog. Miss Snark is a pseudonymous literary agent who prefers gin, George Clooney, and poodles, although not necessarily in that order. She remarked upon the Brandewyne case out of Kansas, mostly quoting a news article. This has since set off a bit of amusement in the comments section, and I'm going to expand upon my comments a bit.

Part of the PW story really made me smile. In an evil, self-satisfied, "you've-just-made-an-admission-against-interest" sort of way.

Bryan Smith, president and CEO of AuthorHouse, said he was disappointed that the jury ignored the First Amendment protections afforded AuthorHouse, and instead "were permitted to consider Kansas common law theories of outrage and invasion of privacy." Smith noted that while the AuthorHouse system leaves authors in control of the content of their books, the company works to identify objectionable material. "In this case," he said, "we acted promptly and conscientiously once we discovered the potential problems, and do not believe our actions justified the verdicts."

How many ways is this intellectually dishonest? I don't have that many fingers, but here's a handful.

The "First Amendment protections afforded [a publisher]" are matters primarily of law, not of fact, and are not in the jury's province. In those few instances in which it is, those protections are considered in the relevant jury instructions, specifically including the Kansas Pattern Jury Instructions.

Libel is a common-law theory that is intimately intertwined with both "outrage" and "invasion of privacy." The Supreme Court has repeatedly rejected attempts to prohibit those torts on First Amendment grounds.

The jury found that AuthorHouse was told about the potential problems at the time that the book was submitted. If AuthorHouse published the book anyway, that's not "prompt and conscientious".

What kind of imbecile would not see the potential problems upon actually reading the manuscript? Certainly not an imbecile with any real experience in publishing.

All publishers leave authors in control of the content of their books.

What Mr Smith really wants is not First Amendment protection  it's tort reform in favor of publishers.

Things get even better when one looks at the substance of Mr Smith's whinging. Even a first-year law student would catch this one. Many torts that have multiple tortfeasors also allocate the proportion of blame. I'm not talking about "comparative fault" here, but allocation; for example, an allocation of 40% to the city for leaving brush obscuring sightlines and 60% to a driver who was driving within the posted speed limit, but nonetheless too fast for the poor visibility, after that driver hit a pedestrian. In that instance, on a $100,000 judgment the victim can collect $40,000, and only $40,000, from the city, and the remaining $60,000 only from the driver. Defamation and related torts, however, are different; they are ordinarily joint and several. That is, the victim can choose to sue only one of several tortfeasors and get the entire damages from that party, or  as in this case  can sue several tortfeasors and collect all of the damages from the deepest pocket. Copyright infringement follows the same principles.

Of course, publishers are aware of this, and impose warranties and indemnities on writers. Those are my pet peeves (and of course I have permission to reproduce this graphic). The Brandewyne case demonstrates something simple, though: That the victim who is not a signatory to such a contract is not herself bound by those warranties and indemnities. Instead, it's left for the author and the publisher to fight over it later… after the victim has gotten her recovery.

Then, too, AuthorHouse is a vanity press. It is not a self-publishing service. Title to the copies as they come off the press belongs to the publisher, and the guaranteed money flow is away from the author on the date the first copy rolls off the press. Thus, my sympathy for the "publisher" is even more limited than usual.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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